Dr. Thankarajan Nadar v. Suresh Kumar alias Surendran

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH** **FRIDAY, THE 5TH AUGUST 2011 / 14TH SRAVANA 1933** **OP(C).No. 1080 of 2010(O)** **--------------------------------------** **OS.107/1977 of IST ADDL.MUNSIFF COURT,NEYYATTINKARA** **....................** ## **PETITIONER/COUNTER PETITIONER/SECOND DEFENDANT** **--------------------------------------------------------------------------------------** **DR.THANKARAJAN NADAR, S/O.SANKARAN NADAR,PANCHIKKALA PATHIRI MELE VEEDU THIRUPURATHOOR DESOM,THIRUPURAM** **BY ADV. SRI.R.T.PRADEEP SRI.V.VIJULAL** ## **RESPONDENT(S): /PETITIONER** **---------------------------------------------** **SURESH KUMAR ALIAS SURENDRAN, S/O.RAMAKIRSHNAN NADAR, VAZHAVILA VEEDU, THIRUPURATHOOR DESOM,THIRUPURAM VILLAGE, FORM MALANCHARIKU,KIZHAKKEKANDATHIL ARAPPURAPUTHEN VEEDU- 695 061.** **R1 BY ADVS. SRI.RAM MOHAN.G., SRI.G.P.SHINOD, SRI.MANU V., SRI.P.GOVIND.** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 05/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **tss** ## **O.P.(C) NO.1080/2010** ## **APPENDIX** ## **PETITIONER'S EXHIBITS** ## **P1:- COPY OF THE JUDGMENT IN OS. 290/1962 DTD. 2.12.65 OF ADDL. MUNSIFF'S -I, NEYYATTINKARA.** **P2:- COPY OF THE FINAL JUDGMENT IN OS. 290/62 DTD. 12.9.75 OF ADDL. MUNSIFF COURT -I, NEYYATTINKARA.** **P3:- COPY OF THE JUDGMENT DTD. 22.11.80 IN OS. 107/77 OF ADDL. MUNSIFF COURT-I, NEYYATTINKARA.** **P4:- COPY OF THE COMMON ORDER DT. 27.8.91 IN IA. 1345/89 IN OS.107/77 OF M.C.-I, NEYYATTINKARA.** ## **P5:- COPY OF THE COMMON JUDGMENT IN AS. 28/94 DTD. 12.2.01 OF SUB COURT, NEYYATTINKARA.** **P6:- COPY OF THE COMMON ORDER DTD. 23.6.06 IN IA. NO.1345/89 IST ADDL. M.C. NEYYATTINKARA.** **P7:- COPY OF THE IA. 1052/07 KN OS. 107/77 DTD. 12.2.2009 IST ADDL. M.C. NEYYATTINKARA.** ## **P8:- COPY OF THE E.P. NO.24/10 DTD. 21.1.10 IN OS. 107/77 OF FIRST ADDL. MUNSIFF COURT, NEYYATTINKARA.** **P9:- COPY OF THE OFDER DTD. 4.11.10 IN EP. 24/10 IN OS. 107/77 OF IST ADDL. MUNSIFF COURT, NEYYATTINKARA.** **P10:- COPY OF THE EA. 776/10 KIN EP. 24/10 IN OS. 107/77.** **P11:- COPY OF THE IA. 5645/09 IN OS. 107/77 OF IST ADDL. MUNSIFF COURT, NEYYATTINKARA.** **P12:- COPY OF THE IA. 1978/10 IN OS. 107/77 OF IST ADDL. M.C. NEYYATTINKARA.** **P13:- COPY OF THE ORDER DT.D 25.11.10 IN IA. 1978/10 IN OS. 107/77 OF IST ADDL. MUNSIFF COURT, NEYYATTINKARA.** ## **RESPONDENT'S EXHIBITS** **NIL:-** **TRUE COPY** ## **P.S. TO JUDGE** **tss** ## **THOMAS P.JOSEPH, J.** **==================================== O.P(C) No.1080 of 2010 ==================================== Dated this the 05[th] day of August, 2011** ## **J U D G M E N T** Remnants of a litigation which started in the year 1962 still remains – though, in the form of a different suit and applications in the said suit. The litigation started by some of the members of a Hindu Tarwad seeking partition of two items of properties in O.S. No.290 of 1962. That resulted in a preliminary decree allotting shares to the plaintiff and the 18[th] defendant therein and declaring shares of legal representatives of Sankaran Nadar and Kunjan Nadar. Later a final decree was also passed. It is said that plaintiff and the 18[th] defendant executed the final decree and took delivery of their respective shares. The 21[st] defendant in O.S. No.290 of 1962 filed O.S. No.107 of 1977 for partition of the property. In O.S. No.107 of 1977, two items were sought to be partitioned; item 1 being 32.640 cents and item 2 being 21.543 cents. Defendants 1 to 5 in O.S. No.107 of 1977 were defendants 2 to 6 in O.S. No.290 of 1962 (in their capacity as legal heirs of Sankaran Nadar). Defendants 7 to 12 were defendants 8 to 13 being legal heirs of Kunjan Nadar. The 16[th] defendant in O.S. No.107 of 1977 was 17[th] defendant in O.S. ## **O.P(C) No.1080 of 2010** -: 2 :- No.290 of 1962. It is stated that defendants 1 to 5, 8 to 13 and 16 (in O.S. No.107 of 1977) remained ex parte. A preliminary decree was passed in favour of plaintiff in O.S. No.107 of 1977. He applied for passing a final decree. At that stage petitioner/second defendant (one of the legal heirs of Sankaran Nadar) filed I.A. No.1345 of 1989 to pass a supplemental preliminary decree. That application was dismissed by Ext.P4, order and a final decree was passed as prayed for by the plaintiff in O.S. No.107 of 1977. Petitioner challenged Ext.P4, order in A.S. No.28 of 1994. It is stated that pending that appeal, the 16[th] defendant (14[th] respondent in that appeal) died on 18.12.1989 (preliminary decree in O.S. No.107 of 1977 was passed on 22.11.1980). In A.S. No.28 of 1994, learned counsel contends that petitioner/appellant/second defendant filed I.A. No.1166 of 1994 to exempt him from impleading legal representatives of deceased 16[th] defendant on the ground that 16[th] defendant remained ex parte in the preliminary and final decree proceedings. According to the learned counsel exemption was granted and it was recorded that legal heirs of 16[th] defendant (14[th] respondent in the appeal) need not be impleaded in view of order dated 08.11.1995 on I.A. No.1166 of 1994. Appeal proceeded and was ultimately allowed whereby Ext.P4, order **O.P(C) No.1080 of 2010** ## -: 3 :- dismissing the application of petitioner/second defendant (I.A. No.1345 of 1989) for passing a supplemental preliminary decree and final decrees were set aside and the matter was remitted to the learned Munsiff for fresh decision. Thereafter by Ext.P6, order dated 23.06.2006 a supplemental preliminary decree was passed in favour of petitioner. That was followed by a final decree (Ext.P7) passed on 12.02.2009. Petitioner sought execution of that final decree in E.P. No.24 of 2010. At that stage respondent (who is claiming right under the 16[th] defendant in O.S. No.107 of 1977 who was the 17[th] defendant in O.S. No.290 of 1962) came forward with E.A. No.776 of 2010 to stay execution proceeding on the ground that the preliminary and final decrees in O.S. No.107 of 1977 are a nullity since it was passed with the 16[th] defendant on the party array who was dead and without his legal representatives being impleaded in the said proceeding. Respondent filed I.A. No.5645 of 2009 in O.S. No.107 of 1977 to pass a supplemental preliminary decree after setting aside the preliminary and final decrees (passed pursuant to the remand order in A.S. No.28 of 1994). I am told that I.A. No.5645 of 2009 is still pending consideration. According to the learned counsel for petitioner, in the meantime, respondent also filed A.S. No.114 of 2010 in the court of learned Sub Judge, Neyyattinkara **O.P(C) No.1080 of 2010** ## -: 4 :- challenging the final decree in O.S. No.107 of 1977 on the very same ground that it is a nullity (learned counsel for respondent was not able to confirm whether any such appeal was preferred and if so, it is pending). The executing court dismissed E.A. No.776 of 2010 vide Ext.P9, order. That was followed by the respondent filing Ext.P12, I.A. No.1798 of 2010 on the trial side in O.S. No.107 of 1977 seeking stay of execution of E.P. No.24 of 2010. That application was allowed by the learned Munsiff as per Ext.P13, order which is under challenge in this proceeding. 2. Learned counsel for petitioner contended that learned Munsiff was not correct in passing Ext.P13, order since final decree has already been passed and the court has became functus officio. It is contended that since on the execution side learned Munsiff had dismissed E.A No.776 of 2010 for the same relief, that relief ought not have been granted on the trial side. It is also the contention of learned counsel that since the preliminary decree followed by the final decree has already been passed, question of passing a supplemental preliminary decree does not arise. Reliance is placed on the decision in **Phoolchand v. Gopal Lal** (1967 SC 1470). It is contended that though it is within the power of court to pass any number supplemental preliminary decrees, such right cannot be invoked ## **O.P(C) No.1080 of 2010** ## -: 5 :- and enforced after a final decree has been passed. It is contended that I.A. No.5645 of 2010 as well as A.S. No.114 of 2010 are therefore without any substance or merit and in the circumstances learned Munsiff ought not have allowed I.A. No.1798 of 2010 (by Ext.P13, order). According to the learned counsel at any rate respondent can only claim from the share set apart for Thanavan Nadar Balakrishnan Nadar and Kunjan Nadar (since respondent is claiming under the 16[th] defendant who was 17[th] defendant in O.S. No.290 of 1962 and who is an assignee from Kunjan Nadar in respect of 4.52 cents). It is requested that in the circumstances petitioner may be permitted to proceed with E.P. No.24 of 2010. 3. In response, placing reliance on the decision in ## **Shankar B.Lokhande v. Chandrakant S.Lokhande** (1995 [3] SCC 413) it is contended that vis-a-vis a sharer, the matter is not concluded until he makes an application and his share is engrossed in the stamp paper. It is also pointed out from Ext.P1, judgment in O.S. No.290 of 1962 that right and possession of predecessor-in-interest of respondent over 4.52 cents has always been recognized right from the start of the litigation and even in the judgment in A.S. No.28 of 1994 and the right of respondent or predecessor-in-interest in respect of the ## **O.P(C) No.1080 of 2010** ## -: 6 :- said property was not disturbed. It is further pointed out that while petitioner applied for passing a final decree vide I.A. No.4889 of 1989, respondent was not made a party (his predecessor-in-interest having expired on 18.12.1981). According to the learned counsel there was no question of legal representatives of the 16[th] defendant (17[th] defendant in O.S. No.290 of 1962) being not impleaded in A.S. No.28 of 1994 since it is only during pendency of a proceeding if the party dies, that provisions of Order XXI Rule 4 of the Code of Civil procedure (for short, “the Code”) would apply. 4. It is not necessary for me to go into those questions in this proceeding. For, either in the form of I.A. No.5645 of 2009 in O.S. No.107 of 1977 or as A.S. No.114 of 2010 (if such an appeal is filed by respondent and it is pending) the question whether supplemental preliminary decree passed as prayed for in I.A. No.1345 of 1989 filed by the petitioner followed by the final decree are valid or not is to be decided in the said proceedings. I therefore do not venture to go into that question since any opinion expressed on the point might have a bearing on the decision of I.A. No.5645 of 2010 or A.S. No.114 of 2010. I leave that matter to be decided by the court concerned if it is arises for a decision. **O.P(C) No.1080 of 2010** -: 7 :- 5. Now coming to the correctness of Ext.P13, order of learned Munsiff granting injunction is concerned, the mere fact that executing court had refused to grant such relief in E.A. No.776 of 10 is no ground for learned Munsiff on the trial side refusing to grant the relief. I must bear in mind that so far as stay in the execution petition is concerned neither Rule 26 nor Rule 29 of Order XXI could apply. Rule 26 applied to a case where the decree has been sent to another court for execution and Rule 26 contemplated a separate suit. 6. So far as I.A. No.1798 of 2010 (Ext.P11) is concerned, execution proceeding was not completed and it is not as if trial court was without power, if necessary by invoking Sec.151 of the Code to grant relief prayed for. Having regard to the contentions raised between parties and even the dispute whether E.P. No.24 of 2010 is in respect of any portion of 4.52 cents over which respondent is claiming right and possession, it was appropriate that until the dispute is adjudicated execution proceeding was kept in abeyance. I find no reason to interfere with Ext.P13, order. 7. Something is required to be said about I.A. No.5645 of 2010 and A.S. No.114 of 2010 (if it is pending) though not on the merits of the case. In both proceedings respondent wanted a **O.P(C) No.1080 of 2010** ## -: 8 :- finding that supplemental preliminary decree obtained by the petitioner on I.A. No.1345 of 1989 and the final decree that followed are null and void. Respondent cannot, at the same time prosecute both the proceedings. He must confine himself either to I.A. No.5645 of 2010 or, if he has already filed A.S. No.114 of 2010, to that appeal. Needless to say that if respondent had filed A.S. No.114 of 2010 and it is answered against respondent, that may have a bearing on I.A. No.5645 of 2010. 8. Learned counsel for respondent in fairness submitted that if respondent has filed A.S. No.114 of 2010 and it is still pending, respondent will exercise his option either to proceed with I.A. No.5645 of 2010 (in O.S. No.107 of 1977) or A.S. No.114 of 2010 as he is advised. In the circumstances respondent is directed to exercise that option (in case he had filed A.S. No.114 of 2010 and it is still pending) within a period of three weeks from this day. I make it clear that if A.S. No.114 of 2010 is filed and it is already answered against respondent, learned Munsiff who is deciding I.A. No.5645 of 2010 shall take into account the disposal of A.S. No.114 of 2010 as well and pass appropriate orders on I.A. No.5645 of 2009 provided A.S. No.114 of 2010 is decided on merit. Whether it is A.S. No.114 of 2010 or I.A. No.5645 of 2010 which survives after respondent exercises his option, the court ## **O.P(C) No.1080 of 2010** **==> picture [41 x 10] intentionally omitted <==** before which the proceeding which survives is pending shall, as expeditiously as possible, having regard to the fact that the litigation started in the year 1962, of course after completing the steps in the matter dispose of such proceeding. In case any of the parties in the proceeding that survives is not served, respondent shall take necessary steps including service of notice on those persons who are not served through special messenger, so that, proceeding could be expedited. Court below is directed to give top priority to the matter and make every endeavour for disposal of the case as aforesaid at the earliest. Original Petition is disposed of as above. All pending Interlocutory Applications will stand dismissed. ## **THOMAS P. JOSEPH, JUDGE.** vsv